The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
FRANCIS SCHOBERG,
*
Plaintiff,
*
v. Civil Action No. RDB-23-2852
*
PHILLIP L. SCHWARTZMAN
and VINCENT J. MICELI, *
Defendants. *
* * * * * * * * * * * * *
MEMORANDUM OPINION
Several motions are presently pending in the above-captioned case: (1) the Officer
Defendants Phillip L. Schwartzman and Vincent J. Miceli’s (the “Officer Defendants”)
Motion to Revise Order (ECF No. 60);1 (2) the Officer Defendants’ Motion to Stay
Discovery (ECF No. 63); (3) Plaintiff Francis Schoberg’s Motion to Compel Discovery
(ECF No. 65);2 (4) Plaintiff’s Motion for Summary Judgment (ECF No. 69); and (5)
Plaintiff’s Motion for Leave to File Physical Exhibit (Video) (ECF No. 70). The instant
Memorandum Opinion is chiefly focused on the pending motions filed by the Officer
Defendants (ECF Nos. 60, 63).
With respect to the Motion to Revise Order (ECF No. 60), the Officer Defendants
request that this Court revise its prior Order (ECF No. 59) pursuant to Fed. R. Civ. P. 54(b).
1 For clarity, this Memorandum Opinion cites to the ECF generated page number, rather than the page
number at the bottom of the parties’ various submissions, unless otherwise indicated. Likewise, this
Memorandum Opinion cites to the ECF generated document number, rather than the exhibit number
provided by the parties’ various submissions.
2 By separate Order, the Court instructs the parties to jointly contact chambers by 5:00 PM ET on
Monday, March 3, 2025, to schedule an in-person hearing during the week of March 3, 2025, on Plaintiff’s
pending Motion to Compel Discovery (ECF No. 65).
In brief, the Officer Defendants contend that the Court committed clear error causing
manifest injustice in failing to address their qualified immunity defense (ECF No. 60-1 at 2–
3)—which their motion to dismiss raised in footnotes (see ECF Nos. 37-1 at 15 n.1; 56 at 7
n.6)—and by construing their underlying “Motion to Dismiss Amended Complaint or for
Summary Judgment” (ECF No. 37) as a motion to dismiss and not a motion for summary
judgment (ECF No. 60-1 at 3–6). Simply stated, these contentions are without merit.
With respect to the Motion to Stay Discovery (ECF No. 63), the Officer Defendants
request that the Court stay discovery while the motion to reconsider remained pending. As
the instant Memorandum Opinion disposes of that motion, the Motion to Stay Discovery
(ECF No. 63) is now moot.
The parties’ submissions have been reviewed, and no hearing is necessary. See Local
Rule 105.6 (D. Md. 2023). For the reasons that follow, (1) the Officer Defendants’ Motion
to Revise Order (ECF No. 60) is DENIED; and (2) the Officer Defendants’ Motion to Stay
Discovery (ECF No. 63) is DENIED AS MOOT.
BACKGROUND
In its Memorandum Opinion dated April 23, 2024, the Court detailed the factual and
procedural background of this case. (ECF No. 58 at 3–7.) The Court provides a brief
overview below.
On July 30, 2019, Miceli, a Baltimore County Police Officer, was working in a
secondary employment capacity as a security officer for Wolf Professional Security, Inc. at a
Giant Food grocery store in Catonsville, Maryland. (ECF No. 25 ¶ 12.) Schoberg entered
the store wearing a black shirt with “POLICE” printed on the front and back of the shirt
and on each sleeve, with a handgun in a holster around his waist. (ECF No. 58 at 4.) When
he was questioned by Miceli, Schoberg indicated he worked as a private security guard for a
private entity called “Hire Police.” (ECF No. 25 ¶¶ 18–20.) At some point during their
interaction, Schoberg confirmed that he was not and never had been a police officer. (Id.)
Schoberg alleges that Miceli then prevented Schoberg from leaving the store, detained him,
and called Schwartzman, who is also a Baltimore County Police Officer, for backup. (Id.
¶ 22.) Ultimately, the two officers then arrested Schoberg for impersonating a police officer
and seized his firearm. (Id. ¶¶ 24, 27, 38.) Two days later, on August 1, 2019, Schoberg was
released from custody. (Id. ¶ 33.) The Baltimore County State’s Attorney then charged
Schoberg with three misdemeanor offenses on October 22, 2019: impersonating a police
officer, carrying a handgun, and carrying a loaded handgun. (Id. ¶ 39.) These charges were
ultimately dismissed by the State’s Attorney for Baltimore County on June 30, 2020. (Id.
¶ 41.)
In June 2023, Schoberg initiated the instant lawsuit, filing the original complaint in
the Circuit Court for Baltimore County. (ECF No. 7.) The suit was subsequently removed
to this Court based on federal question jurisdiction, 28 U.S.C. § 1331. (ECF No. 5.)
Sometime thereafter, Schoberg filed an Amended Complaint (ECF No. 25) against the
Officer Defendants, as well as three now-terminated Defendants—Baltimore County,
Maryland, Giant Food LLC (“Giant”), and Wolf Professional Security, Inc (“Wolf”). The
Amended Complaint alleged the following against all Defendants: (1) false imprisonment
(Count I); (2) malicious prosecution (Count II); (3) abuse of process (Count III); (4)
violation of Article 24 and Article 26 of the Maryland Declaration of Rights: false arrest, due
process (Count IV); (5) violation of Second, Fourth, Fifth, and Fourteenth Amendments to
the United States Constitution regarding illegal search and seizure, illegal use of prosecution
and detention, and unreasonable and excessive use of force (Count V); (6) Section 1983
claim for violation of Second, Fourth, Fifth, and Fourteenth Amendment rights and
privileges under the United States Constitution—pattern and practice, policy, and custom
(Count VI); (7) Section 1983 claim for negligent supervision, training, retention, and custom
or policy of deliberate indifference (Count VII); (8) intentional infliction of emotional
distress (Count VIII); (9) civil conspiracy (Count IX); and (10) conspiracy under 42 U.S.C.
§ 1985 (Count X). (ECF No. 25.)
In response, the Defendants filed motions to dismiss or in the alternative for
summary judgment (ECF Nos. 33 (Wolf and Giant); 37 (Officer Defendants); 38 (Baltimore
County)). On April 23, 2024, the Court issued its Memorandum Opinion and Order
addressing those motions, which it construed as motions to dismiss. (ECF Nos. 58; 59.)
With respect to the now-terminated Defendants, the Court granted Wolf and Giant’s joint
motion (ECF No. 33), dismissing all claims against Wolf and Giant with prejudice; and the
Court granted Baltimore County’s motion (ECF No. 38), dismissing all claims against
Baltimore County with prejudice, with the exception of Count VII, stating a Monell3 claim,4
which was dismissed without prejudice. (ECF No. 59.) The Officer Defendants’ “Motion
3 In Monell v. Department of Social Services, the Supreme Court concluded that Congress intended “municipalities
and other local government units to be included among those persons to whom § 1983 applies.” 436 U.S.
658, 690 (1978).
4 As background, to plead a claim for Monell liability, a plaintiff must allege that (1) the municipality had an
unconstitutional policy or custom; and (2) the unconstitutional policy or custom caused a violation of the
plaintiff’s constitutional rights. Jordan by Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994). While Plaintiff’s
Monell claim was dismissed with respect to Baltimore County, it was dismissed without prejudice subject to
possible refiling pending the outcome of Schoberg’s constitutional claims against the Officer Defendants.
to Dismiss Amended Complaint or for Summary Judgment” (ECF No. 37) was granted in
part and denied in part. Specifically, the Court granted the motion with respect to Counts I,
VI, VII, VIII, and X, which were all dismissed with prejudice; but denied the motion with
respect to Counts II, III, IV, V, and IX. That is, the following five (5) counts remain
pending against the Officer Defendants: malicious prosecution (Count II); abuse of process
(Count III); violation of Article 24 and Article 26 of the Maryland Declaration of Rights:
false arrest, due process (Count IV); violation of Second, Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution regarding illegal search and seizure, illegal
use of prosecution and detention, and unreasonable and excessive use of force (Count V);
and civil conspiracy (Count IX).
On May 7, 2024,5 the Officer Defendants filed the Motion to Revise Order (ECF No.
60) pursuant to Fed. R. Civ. P. 54(b). In brief, the Officer Defendants contend that the
Court committed clear error causing manifest injustice in failing to address their qualified
immunity defense (ECF No. 60-1 at 2–3)—which their motion to dismiss raised in footnotes
(see ECF Nos. 37-1 at 15 n.1; 56 at 7 n.6)—and by construing their underlying “Motion to
Dismiss Amended Complaint or for Summary Judgment” (ECF No. 37) as a motion to
dismiss and not a motion for summary judgment (ECF No. 60-1 at 3–6). Schoberg
responded in opposition (ECF No. 61).
On December 4, 2024, the Officer Defendants filed a Motion to Stay Discovery
(ECF No. 63), wherein they request that the Court stay discovery while the motion to
5 Fed. R. Civ. P. 12(a)(4)(A) provides that a party has fourteen (14) days to respond to a complaint after a
motion to dismiss is denied. That is, the Officer Defendants’ Answer was due on May 7, 2024, and to date,
Schwartzman and Miceli have not filed an answer. The motion to reconsider did not stay the deadline.
reconsider remained pending. As the instant Memorandum Opinion addresses the motion
to reconsider, the Motion to Stay Discovery (ECF No. 63) is now moot and shall be denied
as such.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 54(b) governs reconsideration of orders that do not
constitute final judgments in a case. Rule 54(b) provides that “any order or other decision,
however designated, that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties . . . may be revised at any time before the entry of judgment
adjudicating all the claims and all the parties’ rights and liabilities.” FED. R. CIV. P. 54(b). As
Judge Gallagher of this Court has noted, although “the Fourth Circuit has not clarified the
precise standard applicable to motions for reconsideration, . . . courts in this District
frequently look to the standards used to adjudicate Rule 59(e) and 60(b) motions for
guidance when considering Rule 54(b) motions for reconsideration.” Jahn v. Tiffin Holdings
Inc., No. SAG-18-1782, 2020 U.S. Dist. LEXIS 143395, 2020 WL 4559927, at *1 (D. Md.
May 13, 2020). Accordingly, motions for reconsideration might be granted “(1) to
accommodate an intervening change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Id.
(quoting Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993)). Or, a motion might be
granted “if one of the following is present: ‘(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence; (3) fraud or misconduct by the opposing party; (4)
voidness; (5) satisfaction; or (6) any other reason that justifies relief.’” Jahn, 2020 U.S. Dist.
LEXIS 143395, 2020 WL 4559927, at *2 (quoting Carrero v. Farrelly, 310 F. Supp. 3d 581, 584
(D. Md. 2018)).
Motions for reconsideration are “an extraordinary remedy which should be used
sparingly.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009); Peckey v. Bank of Am.,
No. RDB-14-433, 2016 U.S. Dist. LEXIS 163809, 2016 WL 6951940, at *1 (D. Md. Nov. 28,
2016); Siple v. First Franklin Fin. Corp., No. RDB-14-2841, 2015 U.S. Dist. LEXIS 141554,
2015 WL 6163791, at *2 (D. Md. Oct. 19, 2015) (“Where a party seeks reconsideration on
the basis of manifest error, the earlier decision cannot be ‘just maybe or probably wrong; it
must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.”
(quoting TFWS, 572 F.3d at 194)). “Resolution of the motion is ‘committed to the
discretion of the district court[.]’” Ficep Corp. v. Voortman USA Corp., No. WDQ-13-0429,
2015 U.S. Dist. LEXIS 37013, 2015 WL 1401881, at *3 (D. Md. Mar. 24, 2015) (quoting Am.
Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003)).
ANALYSIS
Through their Motion to Revise Order (ECF No. 60), the Officer Defendants request
that this Court revise its prior Order (ECF No. 59) pursuant to Fed. R. Civ. P. 54(b). The
Officer Defendants contend that the Court committed clear error causing manifest injustice
in failing to address their qualified immunity defense (ECF No. 60-1 at 2–3)—which their
motion to dismiss and related reply raised in footnotes (see ECF Nos. 37-1 at 15 n.1; 56 at 7
n.6)—and by construing their underlying “Motion to Dismiss Amended Complaint or for
Summary Judgment” (ECF No. 37) as a motion to dismiss and not a motion for summary
judgment (ECF No. 60-1 at 3–6). The Court addresses each argument below.
I. The Court did not commit clear error causing manifest injustice in
failing to address Schwartzman and Miceli’s qualified immunity
defense.
As brief background, in their underlying motion to dismiss (ECF No. 37), the Officer
Defendants provided the following footnote on qualified immunity:
Defendants are also entitled to dismissal of any federal claims on the basis of
qualified immunity. At the time of the events alleged, it was not clearly
established that the specific alleged conduct by Defendants would violate
Plaintiff’s federal constitutional rights such that Defendant would be on notice
that their conduct was illegal.
(ECF No. 37-1 at 15 n.1.) The footnote proceeded to cite two Supreme Court cases,
Mullenix v. Luna, 577 U.S. 7 (2015) (per curiam) and White v. Pauly, 580 U.S. 73 (2017) (per
curiam), including two parentheticals explaining that “clearly established” for purposes of
qualified immunity means that the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right. (ECF No.
37-1 at 15 n.1.) In Plaintiff’s response (ECF No. 43), Schoberg addressed the Officer
Defendants’ mention of qualified immunity, highlighting that they “[did] not brief this issue
but merely mention[] in a footnote[.]” (ECF No. 43-1 at 24.) In their reply, the Officer
Defendants did little more, but simply stated: “Plaintiff also makes mention of the defense
of qualified immunity but makes no effort to connect the facts of this case to case law
regarding such immunity.” (ECF No. 56 at 7 n.6.)
Through their Motion to Revise (ECF No. 60), Officer Defendants fault this Court’s
Memorandum Opinion (ECF No. 59) for “mak[ing] no mention of” qualified immunity.
(ECF No. 60-1 at 2–3.) In support of their position that “not ruling on the defense is clear
error,” the Officer Defendants cite dicta within Lescs v. Martinsburg Police Department, 138 F.
App’x 562 (2005). As the United States Court of Appeals for the Fourth Circuit has noted:
“A qualified immunity defense can be presented in a Rule 12(b)(6) motion, but . . . when
asserted at this early stage in the proceedings, ‘the defense faces a formidable hurdle’ and ‘is
usually not successful.’” Owens v. Balt. City State’s Att’ys Office, 767 F.3d 379 (4th Cir. 2014)
(quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 191–92 (2d Cir. 2006)). To establish
a qualified-immunity defense, the Officer Defendants must demonstrate that (1) Schoberg
has not alleged or shown facts that “make out a violation of a constitutional right,” or that
(2) “the right at issue was [not] ‘clearly established’ at the time of” the alleged violation.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). While this Circuit places a portion of the
burden on both parties—the defendant must establish that the allegedly violated law was not
clearly established, and the plaintiff must establish that the defendant violated a
constitutional right, Stanton v. Elliott, 25 F.4th 227, 233 (4th Cir. 2022)—it must be
emphasized that the Officer Defendants approached this “formidable hurdle” and burden
with a generic two-sentence footnote. Their Motion to Revise (ECF No. 60) does not
attempt to cure this deficiency, but rather contends that revision of the Court’s Order (ECF
No. 59) is necessary to correct clear error causing manifest injustice. At bottom, the Officer
Defendants’ dissatisfaction with the Court’s disposition of the underlying motion is
insufficient to warrant relief under Fed. R. Civ. P. 54(b). The Court places great emphasis
on the Officer Developments’ complete failure to develop or support their qualified
immunity defense in their submissions to the Court in so holding. (See ECF Nos. 37-1 at 15
n.1; 56 at 7 n.6; 60-1 at 2–3.)
II. The Court did not commit clear error causing manifest injustice by
construing the Officer Defendants’ “Motion to Dismiss Amended
Complaint or for Summary Judgment” (ECF No. 37) as a motion to
dismiss and not a motion for summary judgment.
Through their Motion to Revise (ECF No. 60), Officer Defendants argue that this
Court committed clear error causing manifest injustice in construing their underlying
“Motion to Dismiss Amended Complaint or for Summary Judgment” (ECF No. 37) by
construing the motion as a motion to dismiss and not converting the motion to dismiss into
one summary judgment (ECF No. 60-1 at 3–6). Briefly, the Court notes that the Fourth
Circuit disfavors conversion of a motion to dismiss to a motion for summary judgment
before the parties have had an opportunity to conduct reasonable discovery. Zak v. Chelsea
Therapeutics Intern., Ltd., 780 F.3d 597, 606 (4th Cir. 2015). Generally, if a party believes that
summary judgment is procedurally inappropriate because the party needs discovery to
properly oppose the motion, the party should file a Rule 56(d) affidavit informing the court
of such. Sager v. Hous. Comm’n of Anne Arundel Cnty., 855 F. Supp. 2d 524, 542–43 (D. Md.
2012). However, failing to file a Rule 56(d) affidavit is not necessarily fatal where the
“nonmoving party has adequately informed the court that . . . more discovery is necessary.”
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244-45 (4th Cir. 2002). “Even in
the absence of a Rule 56(d) affidavit,” a judge maintains “complete discretion” to decline to
convert a motion to dismiss to one for summary judgment. Woodbury v. Victory Van Lines,
286 F. Supp. 3d 685, 693 (D. Md. 2017). It is entirely unclear how this Court’s exercise of its
“complete discretion” to decline to convert the motion to dismiss to one for summary
judgment was clear error causing manifest injustice.
CONCLUSION
For the reasons stated above, (1) the Officer Defendants’ Motion to Revise Order
(ECF No. 60) is DENIED; and (2) the Officer Defendants’ Motion to Stay Discovery (ECF
No. 63) is DENIED AS MOOT.
A separate Order follows.
Dated: February 28, 2025
/s/
Richard D. Bennett
United States Senior District Judge